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Symposium: The Future Of Reproductive Rights: Perilous Private Enforcement Strategies: From Posses And Citizen's Arrest To Texas Heartbeat Statutes, Jennifer A. Brobst

ConLawNOW

The utility of state private enforcement statutes restricting abortion in Texas and other states is worthy of close scrutiny. Placing private enforcement in historical context aids in understanding when it may be a sustainable strategy. First, the strategy of involving the populace in the enforcement of legislative mandates has a long history in the United States. Self-help is a necessity where law enforcement is not equipped to prevent and respond to every call for assistance. Citizen’s arrest, posse comitatus, and mandatory reporting of misconduct by citizens, including professional misconduct, all involve private action for the common good in state and …

Symposium: The Future Of Reproductive Rights: Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes

ConLawNOW

This Article will describe two ways in which Dobbs v. Jackson Women’s Health Organization has muddied the Supreme Court’s precedent on precedent. First, it will examine how the Court’s decision to overrule Planned Parenthood of Southeastern Pennsylvania v. Casey undermines not only its substantive due process holding, but also its status as a precedent on precedent. Without Casey in place, Dobbs further elevates a weakened version of stare decisis that has been ascendant on the Court in recent decades, one which threatens to undermine legal stability in all areas of constitutional law. Second, the Article will examine the Dobbs majority’s …

Disentangling Textualism And Originalism, Katie Eyer

ConLawNOW

Textualism and originalism are not the same interpretive theory. Textualism commands adherence to the text. Originalism, in contrast, commands adherence to history. It should be self-evident that these are not—put simply—the same thing. While textualism and originalism may in some circumstances be harnessed to work in tandem—or may in some circumstances lead to the same result—they are different inquiries, and command fidelity to different ultimate guiding principles.

In this Essay, I argue that disentangling textualism and originalism is critical to the future vibrancy and legitimacy of textualism as an interpretive methodology. When conflated with originalism, textualism holds almost endless opportunities …

Roe V. Wade Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights, Simona Grossi

ConLawNOW

This Article details the Texas litigation on abortion rights in and out of the U.S. Supreme Court in 2021 and its implications for the future of constitutional rights. The litigation focused primarily on procedural issues like standing and sovereign immunity that prevented the plaintiffs’ claims of violation of fundamental constitutional rights to proceed to their merits. Such procedural doctrines have become a powerful tool in the hands of the Supreme Court used to control social and economic development. Thus procedure, originally conceived as the handmaid of justice, has become one of its main antagonists. This Article argues against such abuses …

Suspect Classifications, Immutability, And Moral Responsibility, Michael Gentithes

Con Law Center Articles and Publications

Immutability is an important thread in equal protection jurisprudence.1 It helps explain when a government classification is constitutionally suspect, requiring courts to evaluate that classification under the exacting strict scrutiny standard.2 Recently the Supreme Court, though not expressly relying on equal protection arguments to reach its holding, has suggested that sexual orientation is an immutable trait of the sort that traditionally triggers strict scrutiny when the government relies upon it.3 But the suggestion that sexual orientation is immutable, and thus subject to strict scrutiny, has not found wide acceptance across the judiciary. Furthermore, the scientific evidence surrounding sexual orientation is …

Exigencies, Not Exceptions: How To Return Warrant Exceptions To Their Roots, Michael Gentithes

Con Law Center Articles and Publications

When a police officer interacts with an individual, the encounter is subject to myriad exceptions to the Fourth Amendment’s warrant requirement that lack a coherent justifying theory. For instance, officers can warrantlessly search if an automobile was involved in the interaction, an arrest occurred, or a protective sweep was necessary to prevent a third-party ambush. Officers and individuals struggle to understand the breadth and complexity of these exceptions. The resulting confusion breeds widespread distrust and raises the tension in millions of interactions across the country.

There is an easier way. The Supreme Court has recently reaffirmed its support for a …